Citation Nr: 0309090
Decision Date: 05/14/03 Archive Date: 05/20/03
DOCKET NO. 99-15 600A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUE
Entitlement to a rating in excess of 10 percent for left ear
hearing loss.
REPRESENTATION
Appellant represented by: Wade Bosley, Attorney
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. L. Tiedeman
INTRODUCTION
The veteran had active duty from August 1969 to March 1971.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 1999 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Indianapolis, Indiana.
The veteran testified at hearings before RO personnel in May
2000 and before the undersigned Member of the Board sitting
in Indianapolis, Indiana, in August 2001. Transcripts of the
hearing testimony have been associated with the claims file.
The case was previously before the Board in December 2001,
when it was remanded for additional development. The veteran
underwent an examination in January 2002 for disability
evaluation purposes. In November 2002, the RO referred this
case to the Director, Compensation and Pension Service, for
extra-schedular consideration under 38 C.F.R. § 3.321(b)(1).
In February 2002, the Director held that the veteran was
entitled to an extra-schedular 10 percent evaluation for
service-connected left ear hearing loss effective from May
19, 1998, the date of the claim for an increased evaluation.
FINDINGS OF FACT
1. VA has made reasonable efforts to assist the veteran in
the development of his claim and has notified him of the
information and evidence necessary to substantiate his claim.
2. The veteran has had, at worst, Level II hearing acuity in
the left ear during the appellate period; he has Level I
hearing acuity in the right ear.
3. The veteran was forced to switch from work as a heavy
equipment operator to work as a mechanic because of his poor
hearing; he has been granted an extra-schedular 10 percent
rating by the Director, Compensation and Pension Service, to
compensation him for the impairment in earning capacity
caused by the service-connected left ear hearing loss.
CONCLUSION OF LAW
The criteria for a rating in excess of 10 percent for left
ear hearing loss are not met. 38 U.S.C.A. § 1155 (West
2002); 38 C.F.R. §§ 3.321(b)(1), 4.85, 4.86, Diagnostic Code
6100 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VCAA. There has been a significant change in the law during
the pendency of this appeal. On November 9, 2000, the
President signed into law the Veterans Claims Assistance Act
of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000).
This law redefines the obligations of VA with respect to the
duty to assist and includes an enhanced duty to notify a
claimant as to the information and evidence necessary to
substantiate a claim for VA benefits. The final rule
implementing the VCAA was published on August 29, 2001. 66
Fed. Reg. 45,620, et seq. (Aug. 29, 2001) (codified as
amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)).
This change in the law is applicable to all claims filed on
or after the date of enactment of the VCAA or filed before
the date of enactment and not yet final as of that date. 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002); see Karnas v. Derwinski, 1 Vet. App. 308, 312-13
(1991); cf. Dyment v. Principi, 287 F.3d. 1377 (Fed. Cir.
2002) (holding that only section 4 of the VCAA, amending 38
U.S.C. § 5107, was intended to have retroactive effect).
In this case, VA's duties have been fulfilled to the extent
possible with regard to both of the veteran's claims. VA
must notify the veteran of evidence and information necessary
to substantiate his claim and inform him whether he or VA
bears the burden of producing or obtaining that evidence or
information. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R.
§ 3.159(b) (2002); Quartuccio v. Principi, 16 Vet. App. 183
(2002). In this regard, the veteran was notified of the
information necessary to substantiate his claim and whether
he or VA bears the burden of producing or obtaining that
evidence or information by means of the discussions in the
March 1999 and February 2003 rating decisions; the May 1999
statement of the case; the July 2000, January 2001, and
February 2003 supplemental statements of the case; the
December 2001 Board remand; the February 2003 decision by the
Compensation and Pension Service; and December 2001 and May
2001 letters from the RO.
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c),
(d)). Here, the RO obtained the veteran's available VA
medical records. Further, the veteran has been afforded
several VA examinations to address the nature and severity of
his hearing loss. Further, the veteran has been afforded
both a personal hearing before RO personnel and a Travel
Board hearing. As such, the VA's duties under the VCAA have
been satisfied.
Legal Criteria. The veteran contends that his service-
connected left ear hearing loss warrants a compensable
disability evaluation. Disability ratings are determined by
the application of a schedule of ratings based on average
impairment of earning capacity. Separate diagnostic codes
identify the various disabilities. 38 U.S.C.A. § 1155; 38
C.F.R. Part 4.
It is noted that the VA regulations addressing the rating of
hearing loss were amended during the pendency of this appeal.
See 64 FR 25202 (May 11, 1999) (codified at 38 C.F.R.
§ 4.85-4.87 (2001), and compare with 38 C.F.R. § 4.85-4.87a
(1998). Therefore, pursuant to Karnas v. Derwinski, 1 Vet.
App. 308, 312-13 (1991) (holding that where a law or
regulation changes after a claim has been filed or reopened
but before the appeal process has been concluded, the version
most favorable to the veteran should and will apply, unless
Congress provides otherwise or permits the Secretary to do
otherwise), the version of the law or regulation most
favorable to the veteran shall be applied. In this
particular case, neither the "old" nor the amended
regulations are more favorable to the veteran, insofar as the
regulations were amended only to ensure that current medical
terminology and unambiguous criteria were used, and to
reflect current medical advances. See 64 FR 25202 (May 11,
1999). The tables used to assign the Roman numerals and,
then, to assign the appropriate disability rating were not
changed. Id. The amended regulations do include additional
provisions that pertain to hearing loss of 55 decibels or
more in each of the four specified frequencies (i.e. 1000,
2000, 3000, and 4000 Hertz), and to hearing loss with a pure
tone threshold of 30 decibels or less at 1000 Hertz and 70
decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a), (b).
The Board is of the opinion that the outcome of this case is
the same under either set of regulations.
The severity of a hearing loss disability is determined by
applying the criteria set forth at 38 C.F.R. § 4.85. Under
these criteria, evaluations of bilateral hearing loss range
from noncompensable to 100 percent based on organic
impairment of hearing acuity as measured by the results of
controlled speech discrimination tests together with the
average pure tone hearing threshold level, as measured by
pure tone audiometry tests in the frequencies 1,000, 2,000,
3,000 and 4,000 Hertz, or cycles per second, divided by four.
This average is used in all cases to determine the Roman
numeral designation for hearing impairment from Table VI or
VI. 38 C.F.R. § 4.85(a), (d).
Table VI, "Numeric Designation of Hearing Impairment Based
on Pure tone Threshold Average and Speech Discrimination,"
is used to determine a Roman numeral designation (I through
XI) for hearing impairment based on a combination of the
percent of speech discrimination (horizontal rows) and the
pure tone threshold average (vertical columns). The Roman
numeral designation is located at the point where the
percentage of speech discrimination and pure tone threshold
average intersect. 38 C.F.R. § 4.85(b). The amended
regulations changed the title of Table VI from "Numeric
Designations of Hearing Impairment" to "Numeric
Designations of Hearing Impairment Based on Pure tone
Threshold Average and Speech Discrimination." See 64 Fed.
Reg. 25202 (May 11, 1999).
Table VII, "Percentage Evaluations for Hearing Impairment,"
is used to determine the percentage evaluation by combining
the Roman numeral designations for hearing impairment of each
ear. The horizontal rows represent the ear having the better
hearing, while the vertical columns represent the ear having
the poorer hearing. The percentage evaluation is located at
the point where the row and column intersect. 38 C.F.R.
§ 4.85(e). Table VII was amended in that hearing loss is now
rated under a single code, that of Diagnostic Code 6100,
regardless of the percentage of disability. See 64 Fed. Reg.
25204 (May 11, 1999).
If impaired hearing is service-connected in only one ear, the
hearing ability in the nonservice-connected ear is generally
treated as normal (i.e., Level I hearing). 38 C.F.R. §
4.85(f). However, under another recent change in law, if
hearing impairment in the service-connected ear is found to
be 10 percent disabling, then any deafness in the nonservice-
connected ear may be considered when determining the final
compensation rating. See 38 U.S.C.A. § 1160(a)(3), as
amended by the Veterans Benefits Act of 2002, Pub. L. No.
107-330, 116 Stat. 2820 (Dec. 6, 2002).
Ratings shall be based as far as possible upon the average
impairments of earning capacity with the additional proviso
that the Secretary shall from time to time readjust this
schedule of ratings in accordance with experience. To accord
justice, therefore, to the exceptional case where the
schedular evaluations are found to be inadequate, the Under
Secretary for Benefits or the Director, Compensation and
Pension Service, upon field station submission, is authorized
to approve on the basis of the criteria set forth in this
paragraph an extra-schedular evaluation commensurate with the
average earning capacity impairment due exclusively to the
service-connected disability or disabilities. The governing
norm in these exceptional cases is: A finding that the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. 38 C.F.R. § 3.321(b)(1).
Factual Background. In June 1995, the veteran was granted
service connection for left ear hearing loss, and given a
noncompensable rating, as audiometric testing of record at
that time did not reflect a compensable degree of hearing
loss. The veteran was provided notice of this decision, but
did not appeal. More recently, in May 1998, he submitted a
claim for an increased rating, and by rating decision dated
in March 1999, the RO continued the noncompensable
evaluation.
An outpatient treatment report from the Indianapolis VAMC,
dated in February 1998, reflects mild to moderately severe
hearing loss of the left ear. No significant change was
noted the following month.
On a VA audiometric examination given in July 1998, pure tone
air conduction threshold levels, in decibels, were as
follows:
HERTZ
1000
2000
3000
4000
RIGHT
20
15
20
25
LEFT
55
70
90
70
Speech discrimination ability was 100 percent for the right
ear and 100 percent for the left ear.
Lay affidavits, received in May 2000, reflect that the
veteran's hearing deficiency sometimes resulted in dangerous
situations with respect to his employment, which in part
involved operating heavy equipment. R. [redacted]
, a co-worker,
stated, "If [the veteran] is on the job site operating heavy
equipment one has to be very careful around him and you have
to keep in mind at all times that he probably doesn't hear
you or any other noises." Also of record is a May 2000
statement from C. A. Young, M.A., a vocational expert. Mr.
Young indicated that, ". . . in my professional opinion, I
would say that the erosion [of the veteran's hearing] would
conservatively be estimated at 15% at all exertional levels.
This is allowing for positions that could be accommodated by
[the veteran's] hearing loss."
Outpatient records from the Indianapolis VAMC, dating from
April 1999 to April 2000, continue to reflect moderately
severe conductive loss of the left ear. The right ear was
noted to be within normal limits to 4000 Hertz.
At the time of an August 2000 VA ear disease examination,
relevant diagnoses were of (1) hearing loss, both ears, and
(2) sensorineural hearing loss, moderate in the right ear,
and moderate to severe conductive hearing loss in the left
ear.
At his August 2001 Travel Board hearing, the veteran
testified that, even with the strongest hearing aid
available, he still had difficulty hearing. He also
testified that his duties at his job had changed because of
his disability. The veteran further stated that his hearing
had worsened over the previous two or three years.
Following a December 2001 Board remand, the veteran underwent
another VA audiometric examination in January 2002. At that
time, pure tone air conduction threshold levels, in decibels,
were as follows:
HERTZ
1000
2000
3000
4000
RIGHT
20
20
25
35
LEFT
85
75
85
75
Speech discrimination ability was 96 percent for the right
ear and 60 percent for the left ear. The examiner also
stated that, over the years, the veteran's hearing has
worsened in the left ear. The examiner provided the
following statement:
In [the veteran's] case I do feel his
left ear hearing loss has made a great
negative impact on his ability to safely
handle his job. One only has to spend a
little time with him to see his
frustration as he continues to lose
hearing in his left ear. I do feel that
[the veteran's] left ear hearing loss
presents an exceptional or unusual
disability.
In November 2002, the RO referred this case to the Director,
Compensation and Pension Service, for extra-schedular
consideration under 38 C.F.R. § 3.321(b)(1).
In February 2003, the Director, Compensation and Pension
Service, issued a decision, granting the veteran entitlement
to an extra-schedular evaluation of 10 percent pursuant to
38 C.F.R. § 3.321(b)(1). The decision reasoned that while
the veteran was able to maintain gainful employment as a
mechanic, he was forced to stop operating heavy machinery
because he had become a hazard to other workers. Because the
veteran's service-connected left ear hearing loss interfered
with "some aspects" of his employment, an extra-schedular
evaluation of 10 percent was assigned.
Analysis. With respect to the VA examination conducted in
July 1998, the average decibel threshold (for the frequencies
of 1000, 2000, 3000, and 4000 hertz) was 71 decibels for the
left ear, and this ear had speech discrimination of 100
percent. With respect to the VA examination conducted in
December 2001, the average decibel threshold (for the
frequencies of 1000, 2000, 3000, and 4000 hertz) was 80
decibels for the left ear, and this ear had speech
discrimination of 60 percent. Under Table VI of 38 C.F.R. §
4.85, both sets of results translate to Level II hearing in
the left ear. Entering Table VII of 38 C.F.R. § 4.85, with
Level II hearing for the left ear and Level I hearing for the
nonservice-connected right ear, results in a noncompensable
(0 percent) rating for left ear hearing loss under Diagnostic
Code 6100.
In accordance with 38 C.F.R. § 4.86, there is an alternative
rating method which may be used for exceptional patterns of
hearing impairment; specifically, where the pure tone
threshold at each of the four specified frequencies (1000,
2000, 3000, and 4000 Hertz) is 55 decibels or more, or when
the pure tone threshold is 30 decibels or less at 1000 Hertz,
and 70 decibels or more at 2000 Hertz. However, the test
results from the two examinations do not meet the
requirements for the special rating method of an exceptional
pattern of hearing impairment under 38 C.F.R. § 4.86.
Moreover, since test results in July 1998 and again in
December 2001 reflect that the nonservice-connected right ear
hearing loss is minimal and translate to Level I hearing
pursuant to VA criteria, the recent change to 38 U.S.C.A. §
1160(a)(3) would not provide any basis for a rating in excess
of the 10 percent rating currently assigned on an extra-
schedular basis for the service-connected left ear hearing
loss.
The Board notes that the veteran uses a hearing aid; however,
the evaluations derived from the rating schedule are intended
to make proper allowance for improvement by hearing aids, and
examinations to determine such improvement are, therefore,
unnecessary. 38 C.F.R. § 4.86. Thus, even though medical
records reflect that the veteran uses a hearing aid, the
payment of additional compensation based upon the need for
assistive devices is inconsistent with the purpose of VA
compensation. See 52 Fed. Reg. 44, 118 (1987).
The preponderance of the evidence is against the claim for a
higher rating for left ear hearing loss on a schedular basis.
Thus, the benefit-of-the-doubt rule does not apply, and the
claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v.
Lewinski, 1 Vet. App. 49 (1990).
With respect to the assignment of an extra-schedular rating,
the Board concurs with the decision of the Director,
Compensation and Pension Service, that the evidence in this
case does present such an exceptional or unusual disability
picture as to render impractical the application of the
regular rating schedule standards. See 38 C.F.R.
§ 3.321(b)(1). The Board, however, does not conclude that an
extra-schedular evaluation in excess of 10 percent is
warranted as the veteran is able to maintain full time
employment and his left ear hearing loss has only interfered
with some aspects of his employment.
ORDER
Entitlement to rating in excess of 10 percent for left ear
hearing loss is denied.
____________________________________________
Gary L. Gick
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.